Coordinated Witness Preparation for Employment Litigation

The defense of a labor and employment case that is headed toward trial is often based on the testimony of a variety of employees, most of whom are disinterested in the trial and appalled at the prospect of testifying. According to the author, counsel can create a strong defense out of this disadvantageous scenario through coordinated witness preparation, which he compares to making a wall out of individual bricks. He suggests gathering all the testifying witnesses in one place for a coordinated series of sessions, over a number of days.

This technique exposes individual and group issues that can weaken or derail a defense strategy. Throughout this process, common individual behavioral and motivational issues emerge, and once identified they can be resolved before trial.

Gathering witnesses and hearing their testimony often exposes a significant case problem that might be missed in individual witness preparation. It’s not uncommon for each supervisor and human resources worker to attempt to obscure his or her own responsibility for decisions made about workplace incidents, pointing toward other departments as being the proper place of decision-making.

This may be useful for an individual witness, but it’s problematic for the company and the defense strategy. The problem is explicitly labeled as such to the group, without any one witness being blamed. Then the group cooperates in identifying the reasonableness of actions taken at each decision point until all are satisfied with the unified and accurate narrative.